JUDGMENT S.B. SINHA, J :

1. Leave granted.

2. Defendants-Appellants are before us, aggrieved by and dissatisfied with a judgment and order dated 3.11.2006 passed by a learned Single Judge of the High Court of Judicature of Rajasthan in S.B. Civil First Appeal No. 144 of 1981 allowing the appeal of the respondent from a judgment and order dated 31.01.1981 passed by the Additional District Judge, No. 1, Jaipur City in Civil Suit No. 67 of 1977, whereby and whereunder a suit filed by the respondent herein for declaration of his title, permanent injunction and possession was dismissed.

3. At the outset, we may notice the genealogical tree of the parties, which is as under:

Maulana Ziauddin Sahib

4. One Hajrat Ziauddin Sahib (1730-1810) was a great Sufi Saint. He Gulam Rasool Sahib belonged to Sunni Sect of Islam.Imamuddin Sahib of his spiritual attainments, 7 Syed In view bighas of land at Moti Katla, Jaipur was given to him by the then Ruler Syed Mahiuddin Sahib Syed Kamaluddin Syed Sarfuddin Sahib Sahib of the State of Jaipur for the purpose of maintenance of a garden. He, Moinuddin Badruddin Faridduin however, acquired lands out of his own funds. It comprised of Khasra Nos. 497 to 503 admeasuring 8 bighas 2 biswas. Indisputably, on the Syed Aminuddin Syed Saiduddin Syed Fakruddin said land, there are prayer rooms, Dargah, Mosque, garden, graveyard, Syed Tajuddin Mahemuda Syed Gulam Begum Ziauddin shops, houses, lodge, etc. On the demise of Hajrat Ziauddin Sahib, in the Syed 1810, which took place Moinuddin yearSyed Zenuel his Syed Agigudia(tomb) was treated as a Abedin Mazar Syed Allauddin Syed Rahisnddi sacred place. It attained the status of a Dargah. One Gulam Rasul Sahib was the first Sajjadanashin and Mutawalli of the Dargah. He was son of his sister. In the year 1860, Sayed Immauddin Sahib succeeded to the said office followed by Syed Mohiuddin Sahib.

5. A matmi proceeding was initiated for 12 bighas and 12 biswas of land. It was found that late Ziauddin Sahib was not in possession of 7 bighas of land. The land upon which Dargah, Kabristan, etc. were situated were not the subject matter of the State grant and, therefore, not subject to matmi.

6. Syed Mohiuddin Sahib was convicted by a criminal court. The `Sajjadagi was tied on the head of Kamaluddin, the younger brother of Mohiuddin as he was considered fit for holding the said post.

7. Matmi was sanctioned in favour of Kamaluddin. He died on or about 29.05.1938. He purported to have executed a Will and nominated Aminuddin, his eldest son, as Sajjadanashin and Faqruddin, another son, as Mutawalli. Allegedly, there existed a custom that on the Soum, i.e., the third day of the funeral, a congregation makes the nomination. It is notified by the congregation. Dastarbandi ceremony took place in terms whereof turbans were tied. The said customary formalities were said to have been complied with.

8. Moinuddin son of Mohiuddin (the convicted Sajjadanashin) filed a suit against Kamaluddin claiming inheritance in the year 1939. He also filed a suit against Aminuddin claiming election to the post of Sajjadanashin by Muslim public. Both the suits were dismissed by judgments dated 11.05.1920 and 5.09.1939 respectively. Appeals preferred thereagainst were also dismissed. During pendency of the said proceedings, Aminuddin died on 12.07.1944. In his place, Tajuddin was substituted. In the said suit, Wakf in question was held to be Wakf Al Aulad.

9. Tajuddin filed another suit, on or about 7.09.1953 for a declaration that he was the rightful Sajjadanashin of the Dargah in question. A prayer was made for removal of Faqruddin, the deceased predeceased-in- interest of the appellants, from the office of Mutawalli. A large number of issues were framed.

10. Issues Nos. 1, 4 and 5 read as under:

"1. Whether the plaintiff is the Sajjada of the Dargah of Maulana Ziauddin Sahib?

4. (a) Whether on proof of issue No. 1 the plaintiff is entitled as Sajjadanashin to the savings left after mooting the e